Opposition Brief — Webber v. United States

No. 93-736 Me

OCTOBER TERM, 1993

PRINCE S.J. WEBBER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO i 4E UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES

Drew S. Days, III

Solicitor General

Department of Justice

JEFFREY T. INFELISE Washington, D.C. 20530

Colonel, USAF (202) 514-2217

JULES D. SILVERBERG

Captain, USAF

Appellate Government Counsel

Government Trial and Appellate

Counsel Division

Air Force Legal Services Agency

Bolling Air Force Base

Washington D.C. 20332-5113

a BEST AVAILABLE E COPY i

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QUESTIONS PRESENTED

1. Whether the Constitution permits the use of a

court-martial panel consisting of five members who may

convict on a vote of two-thirds of the members.

2. Whether the facts relied upon as a basis for

issuance of the search authorization in this case estab-

lished probabie cause.

3. Whether the evidence was sufficient to support

petitioner’s conviction.

4. Whether the Judge Advocate General of an Armed

Force, who is not authorized to make appointments

under the Appointments Clause of the Constitution, may

appoint commissioned officers to serve as military trial

and appellate judges.

5. Whether military trial and appellate judges must be

appointed to their judicial duties for fixed terms.

TABLE OF CONTENTS

Page

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esas ke eae ican isagawucnmedpuceeoud 2

ead th a a ans mnasnandons 5

a a os scaganahbedsaseddvasaneus 18

TABLE OF AUTHORITIES

Cases:

Ballew v. Georgia, 485 U.S. 223 (1978) ..........cccccccccseeeeee 5, 14

Branford vy. United States, 356 F.2d 876 (7th Cir.

| Eo sehen te Sad i Sa en RS eS oe a 7

Burch v. Louisiana, 441 U.S. 130 (1979) ......... eee 5, 14, 15

Burns v. Wilson, 346 U.S. 187 (1953) ......................00000. i)

De War v. Hunter, 170 F.2d 993 (10th Cir. 1948), cert.

I tO as dsadcnnaxanaddosesssacioconees 8, 15

Dynes v. Hoover, 61 U.S. (20 How.) 65 (1858) 2... 7

Hutchinson v. United States, 18 M.J. 281 (C.M.A.),

re, Geen, SE UL, DEE CRGBE) cecccccecccccccsncccccccsceseccese 7

Jackson v. Taylor, 353 U.S. 569 (1957) ................0..000. 14

Jackson v. Virginia, 443 U.S. 307 (1979) ....................08. 13

Kahn v. Anderson, 255 U.S. 1 (1921) wc cee ceceeeeeeeees 7-8

King v. Moseley, 430 F.2d 732 (10th Cir. 1970) ........... 7

Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827) ........00.... 10

Mendrano v. Smith, 797 F.2d 1538 (10th Cir.

i sddnausaueenne 7, 8, 13, 15

Milligan, Ex parte, 71 U.S. (4 Wall.) 2 (1866) .... 7,8

O'Callahan v. Parker, 395 U.S. 258 (1969) 0.0... 7

Owens v. Markley, 289 F.2d 751 (7th Cir. 1961) 2.00.00... 7-8

Quirin, Ex parte, 317 U.S. 1 (1942) 2.0... cece eeeceeee noes 7,8

ee PE, BIER BC RUNDED creeiesconsacesssccéiccscosseassess 7

Rostker v. Goldberg, 453 U.S. 57 (1981) 0.0.00... eee ceeeee i)

Solorio v. United States, 483 U.S. 435 (1987) ................ 7,9

(III)

IV

Cases—Continued: Page

Stout v. Hancock, 146 F.2d 741 (4th Cir. 1944), cert.

denied, 325 U.S. 850 (1945) .....ccccccccccccccccccccccecccccocccccosee 11

United States v. Allen, 31 M.J. 572 (N.-M.C.M.R. 1990),

aff’d, 33 M.J. 209 (C.M.A. 1991), cert. denied, 112 S. Ct.

PD CUED ccs matadsoasedssidsassseuibaaaess oanramaea ie 7

United States vy. Carter, 25 M.J. 471 (C.M.A. 1988) ...... 15

United States v. Curtis, 32 M.J. 252 (C.M.A.), cert.

denied, 112 S. Ct. 406, remanded, 33 M.J. 101 (C.M.A.

1991), cert. denied, 112 S. Ct. 1177 (1992) oo... cee. F

United States v. Guilford, 8 M.J. 598 (A.C.M.R. 1979),

petition for review denied, 8 M.J. 242 (C.M.A. 1980) ... 14

United States v. Mason, 24 M.J. 127 (C.M.A.), cert.

denied, 484 U.S. 912 (1987) ............. saad daneadisaabcarnverectiicss 7

United States v. McClain, 22 M.J. 124 (C.M.A. 1986) ... 7,15

United States v. Palenius, 2 M.J. 86 (C.M.A. 1977) ...... 14

United States v. Santiago-Davila, 26 M.J. 380 (C.M.A.

DOME cs cagditck at eils wek tae yeh at CE eet eA Ely 15

United States er rel. Toth vy. Quarles, 350 U.S. 11

SINE Uceaboisseuens arcs ocarsoMaaedr a aioe ates 12

Whelchel v. McDonald, 340 U.S. 122 (1950) ..........00000.05. 7,9

Williams v. Florida, 399 U.S. 78 (1970) c.cccccccccccccsccceseeee 15

Constitution, statutes, regulation, and rule:

U.S. Const. :

a Ba Pe As Ow a aanicniacoakan teeeilinbbescas ane Sceaenrias &-9

Art. II, § 2, Cl. 2 (Appointments Clause) .......0..0..... 18

PR BER sana daeassoiacecextadsusenckennseces paleebunatatdt Dceecnetse 8

ode badsicomnadacicvantiite Geimccsab onal dihis acticin cae mie 7,8

ob ly Reena Rar Reco IR NS Hee MONEE ON NEARED NEL UN TaD 7

WN ranch etecasennae alee aus eer tae ecu ete en 7,8

IEP IRIN SE nn gor is 8

PE vosareaisei cdddncaicstsvennlcdaaertdeieretnenue 7, 8, 15

Act of Apr. 23, 1800, ch. 33, § 1, art. 41, 2 Stat. 51 oo... 11

Act of July 17, 1862, ch. 204, art. 19, 12 Stat. 605 0.0.0.0... 11

Act of June 4, 1920, ch. 227, art. 43, 41 Stat. 795-796 ....... 11

V

Statutes, regulation, and rule—Continued: Page

American Articles of War of 1776, reprinted in 1 & 2

W. Winthrop, Military Laws and Precedents (2d ed.

1920):

§ 14:

ONE. 2) icisunsaccscuunsssseackasssauuassceerteniiee ee eee 9

REN sD scinnvbanatanatensetarinesksksena emacs eens a 10

American Articles of War of 1806, ch. 20, § 1, 2 Stat. 359:

OFT. G4, 2 BML, DEE ois ccsvcsssniasisasanssessnan eae 10

art... 86, Z tat. DOD ai sasiscesss-satsarisatneeeee ee ee 1]

American Articles of War of 1874, reprinted in 1 & 2 11

W. Winthrop, Military Law and Precedents (2d ed.

1920):

BOR EG scrsccasasssciiskauceauicesdsbaqeabaeeee neta eee 10)

WT DG aca disco benavaenaniatsacecouuehieeaneicadebeeeiae nein teen 1]

American Articles of War of 1916, ch. 418, art. 5, 39 Stat.

EEE si arnasiccvnsues save banegraneunnceooweteadalecnmenine tatiana ee 10

Uniform Code of Military Justice, 10 U.S.C. 801 ef seq.:

Art. 16, 10 U.S.C. 816 (1982 & Supp. V 1987) ..0......... 10

Art. 16(1)(A), 10 U.S.C. 816(1)(A) (1982 & Supp. V

WORSE) sincacsaseseceseuntasanigus ie adeiaasae eee eee eee 12

Art. 25, 10 U.S.C. 825 (1982 & Supp. V 1987) ............ 14

Art..Ga{a), 16 U Bil BagGecnccassc eee li

Art. 52(a)(2), 10 U.S.C. 852(a)(2) (1982 & Supp. V

SOME): .cusrdjaddusiansued anus puansanqgheraeeaee dees dea eee 12

Art. GGle), 10 UBC. BGs «accmeniaeceeenane 13, 14

Art. 67(¢), 10 U.S.C. 867(¢) (Supp. IV 1992) oo... 6

Art. 67a(a), 10 U.S.C. 867a(a) (Supp. TV 1992) 220.000... 6

Art. 126, 10. U3.) GEO cnc aneee 2

Art. 121, 20: U 30 Set ose eee =

Ast. 335, 30 3B 6 Oe caacansc eee 2

Art, 134, 19-U 35) Wee coe 2

28 U.S.C. 1259(3) (Supp. IV 1992) ..cccccscccescccescsceseseeeees 6

Exec. Order No. 12,550, 3 C.F.R. 192 (1986 comp.) ......... 12

Mil. R. Evid. 311(b)(3)

$n the Supreme Court of the Chuted States

OCTOBER TERM, 1993

OPINIONS BELOW

Y OpmMion of the (Court of Military \ppeals | eT.

\pp. la) is unreported. The opinion of the Air Force

Court of Military Review (Pet. App.

+)

ported.

2Za-10a) is unre-

JURISDICTION

The judgment of the Court of Military als was

entered on August 12, 1993. The petition for a writ o

°

i

‘ertiorari was filed

on November 9,

ourt

>) (Supp lV 199?)

1993. The

: | = » 6) Ty]

is invoked under 2S |

urisdiction of this © A;

|

STATEMENT

Petitioner, a member of the United States Air

Force, was convicted after a general court-martial of

rape, larceny, burglary, and indecent assault, in viola-

tion of Articles 120, 121, 129, and 134 of the Uniform |

Code of Military Justice, 10 U.S.C. 920, 921, 929, and |

934. He was sentenced to a dishonorable discharge,

confinement for 40 years, forfeiture of all pay and

allowances, and reduction to the lowest enlisted

grade. The convening authority approved the findings

and sentence. The Air Force Court of Military

Review affirmed the findings and sentence. Pet. App.

sa. The Court of Military Appeals granted dis-

cretionary review on two issues, which are raised

before this Court in Questions 4 and 5 above, but it

denied the petition for new trial and otherwise

affirmed the decision of the court of military review.

Id. at la.

The victim of the rape and the other charged

offenses, Airman Linda Jean Nantkes, lived in a

women’s dormitory at Kirtland Air Force Base in

New Mexico. On September 11, 1990, she went to

sleep at about 10 p.m. in her room. Soon afterward she

was awakened by a knock at her door. She asked who

was at the door. Her visitor answered with a muffled

reply that sounded like “It’s Webber.” On opening the

door the victim saw a black man, later determined to

be petitioner, who told her that her windows were

open. When she said her windows were not open, the

man said, “Well, | mean your shades or your blinds

are open.” Nantkes said, “Okay,” and shut the door.

She went to the shades, which were open just a crack,

but not enough that someone could see into her room.

ee

Nantkes then returned to her bed and went to sleep.

Vr. 225-227, 255-254.

At about 4:50 a.m., Nantkes awoke to find a man

ta .ding by her bed touching her groin area. She

could not see the man well, but believed him to be a

black man. The assailant covered her mouth, magein

her onto her stomach, and raped her. Tr. 228-229,

The assailant then put a pillowease over her head

before turning her back over on her back and raping

her a second time. Tr. 229-231. After forcing her to

shower with him, the pillowcase still over her head,

the assailant covered her head with a towel and raped

her a third time. Tr. 232-234. Nantkes subsequently

noticed that the nightgown she had been wearing

before the attack was missing from her rooin. Tr. 238

Although Nantkes was unable to identify her

assailant, she was able to describe the person who

announced himself as “Webber” when he knocked at

her door the previous night. Tr. 226-227. She also

was able to assist the agents in creating a composite

picture of that person. She described him as black,

about 20 years old, about 5’3” to 5’5” tall, and of

slender build. Tr. 227, 238, 259-260; Pros. Exh. 4. In

addition, she testified that she perceived the accent of

the assailant’s voice as that of a black man; that when

the assailant forced her to put her arms around him

she perceived his height to be similar to hers, 5'4”;

and that his build was slender. ‘Tr. 227, 250, 255.

Agents investigating the incident learned that male

servicemembers from a dormitory across the street

often frequented the women’s dormitory. Tr. 260-261.

The agents then conducted a door-to-door inquiry at

the men’s dormitory. One of the agents encountered

petitioner and recognized him as the person depicted

in the composite picture that had been prepared from

Nantkes’ deseription of the man who had visited her

on the night of the rape. Tr. 259, 261. When asked if

he knew anyone who matched the composite picture,

petitioner said that the picture looked like a man who

had been living in a room down the hall. None of the

occupants of that room matched the picture. Tr. 262.

Upon interviewing petitioner, the agents learned

that his last name was Webber. Tr. 262. In the course

of discussion with one of the agents, petitioner said

that on the previous night he had walked by the

women’s dormitory across the street from the tran-

sients’ dormitory; that he noticed an individual who

appeared to be looking at a woman undressing in the

window of the female dormitory; that as he ap-

proached, the individual walked off; and that he

knocked on the woman’s door and informed her that

her shades were open. Tr. 263. The agents then

obtained oral probable cause search authority—the

military equivalent of a warrant—to search peti-

tioner’s room for, among other items, the missing

nightgown. Tr. 265-264. In the course of the ensuing

search, the agents found the nightgown under a seat

cushion in petiticner’s apartment. When the agents

found the gown, petitioner exclaimed spontaneously,

“Oh, shit!” Tr. 264, 294. The agents then sought and

obtained a further authorization to search for other

evidence related to the rape. They then found a hand-

written note containing Nantkes’ name. The note

was written in petitioner’s handwriting. Tr. 264-265,

Oo].

Physical evidence from the crime scene was seized

and later examined. A serologist testified that, by

using the ABO test, he determined that the semen

‘aaa ili i

5

found on the victim’s nightshirt matched petitioner’s

saliva type.’ Tr. 307-309. On the basis of that test, the

serologist testified that 75% of black males could be

excluded as the originators of the stains, but that

petitioner could not be excluded. Tr. 309. A second

type of test did not establish a match between the

samples at the crime scene and the fluid sample taken

from petitioner. The serologist offered three possible

explanations for that result: that the semen stains did

not originate from petitioner; that the pertinent

enzymes detected in the second test had deteriorated

by the time of the test; or that the samples that were

tested were of a different substance, such as vaginal

fluid. Tr. 308, 319-826.

ARGUMENT

1. Petitioner argues (Pet. 14-18) that he was

denied due process because he was tried and convicted

by a jury of fewer than six members who were not

required to reach their verdict by a unanimous vote.

Citing Burch v. Louisiana, 441 U.S. 130 (1979), which

invalidated a conviction for a non-petty offense by

only five members of a six-person jury, and Ballew v.

Georgia, 435 U.S. 223 (1978), which invalidated a

conviction for a non-petty offense by a five-person

jury, petitioner argues that the same standards

should apply to the military justice system and that

his conviction should therefore be reversed.

| The serologist testified that while most secretors have

saliva and seminal typing consistent with their blood typing,

that was not true in petitioner's case. The serologist therefore

based his analysis on a comparison of petitioner's saliva sample

and the specimens of semen obta.ned from the crime scene.

Tr. 304; Pros. Exh. 8, at 2.

6

a. Petitioner’s complaints about the makeup of the

court-martial panel were not raised before the Air

l’orece Court of Military Review. Moreover, although

they were argued in the petition for grant of review to

the Court of Military Appeals, those claims were not

among the issues that the Court of Military Appeals

accepted for review. Accordingly, it is not clear that

those issues are subject to review by certiorari in

this Court.

The statutes providing certiorari review of the

judgments of the Court of Military Appeals, 10 U.S.C.

&867a(a) (Supp. [IV 1992) and 28 U.S.C. 1259(3) (Supp. 1V

1992), restrict this Court’s certiorari jurisdiction to

“Idjecisions” of the Court of Military Appeals.

Article 67a(a) of the UCMJ, 10 U.S.C. 867a(a) (Supp.

IV 1992), further provides that this Court may not

review by certiorari “any action of the Court of

Military Appeals in refusing to grant a petition for

review.” The Court of Military Appeals has the

statutory authority to limit decisions in any case to

less than all the issues urged by the defendant.

Article 67(¢c), UCMJ, 10 U.S.C. 867(¢) (Supp. TV 1992).

Since that court did not pass on those questions,

there is a question whether that court rendered a

“{djecision” on those questions within the meaning of

the statutes authorizing this Court to review

judgments of the Court of Military Appeals.

b. On the merits, there is no force to petitioner's

constitutional challenge te the five-member court-

martial panel or to the statutory authorization for

nonunanimous verdicts in the military criminal jus-

tice system. The courts that have examined the

question have uniformly upheld the military practice

of convening court-martial panels with as few as five

7

members and the military practice of requiring only a

two-thirds vote of the members to convict. See

Mendrano v. Smith, 797 F.2d 1588 (0th Cir. 1986);

United States v. Allen, 31 M.J. 572 (N.-M.C.M.R.

1990), aff'd, 33 M.J. 209 (C.M.A.), cert. denied, 112 S.

Ct. 1473 (1992); United States v. Curtis, 32 M.J. 252

(C.M.A.), cert. denied, 112 S. Ct. 406, remanded on

other grounds, 38 M.J. 101 (C.M.A. 1991), cert. denied,

1128. Ct. 1177 (1992); United States v. Mason, 24 M.J.

127, 128 & n.* (C.M.A.), cert. denied, 484 U.S. 912 .

(1987); Hutchinson v. United States, 18 M.J. 281

(C.M.A.), cert. denied, 469 U.S. 981 (1984); see United

States v. McClain, 22 M.J. 124, 128 (C.M.A. 1986).

Those decisions are correct. The statutes govern-

ing the number of members on court-martial panels

and the number that must concur to return a verdict

do not offend either the Fifth or the Sixth Amend-

ment to the Constitution.

Petitioner seeks to impose on courts-martial the

same requirements that Art. III, § 2, Cl. 3, and the

Sixth Amendment impose in civilian cases. It is well

settled, however, that the right to a jury trial that is

yuaranteed by those provisions does not apply to

court-martial proceedings. Hw parte Milligan, 71

U.S. (4 Wall.) 2, 128 (1866); Dynes v. Hoover, 61 U.S.

(20 Hlow.) 65, 79 (1858). The Fifth Amendment specif-

“ See also O'Callahan v. Parker, 395 U.S. 258 (1969), over-

ruled on other grounds, Solorio v. United States, 483 U.S. 4385

(1987); Reid v. Covert, 354 U.S. 1, 19 (1957) (plurality opinion);

Whelchel v. McDonald, 340 U.S. 122, 127 (1950); Ev parte

Quirin, 317 U.S. 1, 40-41 (1942); Kahn v. Anderson, 255 U.S. 1

(1921); Mendrano v. Smith, 797 F.2d at 1544; King v. Moseley,

430 F.2d 782, 734 (10th Cir. 1970); Branford v. United States,

356 F.2d 876, 877 (7th Cir. 1966); Owens v. Markley, 289 F.2d

8

ically exempts “cases arising in the land or naval

forces” frum the requirement of an indictment by a

grand jury for serious crimes. By drafting the Fifth

Amendment in that manner, “the framers of the

Constitution, doubtless, meant to limit the right of

trial by jury, in the sixth amendment, to those

persons who were subject to indictment or present-

ment in the fifth.” Ha parte Milligan, 71 U.S. (4

Wall.) at 125. As the Court explained in Ex parte

Quirin, 317 U.S. 1, 39 (1942), neither Section 2 of

Article III of the Constitution nor the Sixth Amend-

ment requires a trial by jury in the military, because

those provisions were intended “to preserve unim-

paired trial by jury in all those cases in which it had

been recognized by the common law * * *, but not to

bring within the sweep of the guaranty those cases in

which it was then well understood that a jury trial

could not be demanded as of right.” Accordingly,

because petitioner had no Article III or Sixth

Amendment right to a trial by a petit jury, he also had

no right under those provisions to a unanimous vote

by a jury composed of at least six persons.

Petitioner’s claim fares no better under the Due

Process Clause. The Constitution authorizes Con-

gress to “make Rules for the Government and

Regulation of the land and naval Forces,” Art. I, § 8,

751, 752 (7th Cir. 1961). See De War v. Hunter, 170 F.2d 993,

997 (10th Cir. 1948), cert. denied, 337 U.S. 908 (1949) (court-

martial panel composed exclusively of officers to try an en-

listed man does not violate the Sixth Amendment). See gener-

ally Van Loan, The Juru, the Court-Martial, and the Constitu-

tion, 57 Cornell L. Rev. 368 (1972); Henderson, Courts-Martial

and the Constitution: The Original Understanding, 71 Harv. L.

Rev. 293 (1957).

9

Cl. 14, and grants Congress “primary responsibility

for the delicate task of balancing the rights of

servicemen against the needs of the military.”

Solorio v. United States, 483 U.S. 435, 447 (1987). See

also Burns v. Wilson, 346 U.S. 137, 140 (1953)

(plurality opinion). Congress’s judgment about the

composition and voting procedures of a court-martial

is entitled to special deference, not only because

“It|he constitution of courts-martial, like other mat-

ters relating to their organization and administration

* * *, is a matter appropriate for congressional

action,” Whelchel v. McDonald, 340 U.S. 122, 127

(1950),’ but also because the practices at issue have

been carried forward from the earliest days of our

nation. Cf. Solorio v. United States, 483 U.S. at 447.

The nation’s first military law was the American

Articles of War of 1776. 1 & 2 W. Winthrop, Military

Law and Precedents 47, App. 961-971 (2d ed. 1920).

Section 14, Art. 1, provided that at least 13 officers

would serve on general courts-martial. Several years

later, when large numbers of desertions and an

understaffing of officers had become a particularly

acute problem for commanders at frontier outposts,

Congress amended the American Articles of War to

permit a quorum of five officers at a general court-

martial when 13 members could not be detailed “with-

out manifest injury to the service.” 30 J. Continental

Cong. 145, 316 (J. Fitzpatrick ed. 1934); 1 & 2 W.

Winthrop, supra, at 22-23, App. 972; Van Loan, The

* See also e.g., Rostker v. Goldberg, 453 U.S. 57, 64-65 (1981)

(the decisions of Congress are entitled to particular deference

when they involve “Congress’ authority over national defense

and military affairs”).

10

Cornell L. Rev. 363, 384-385 n.118 (1972). As a result,

court-martial panels often consisted of fewer than 13

members. See Martin v. Mott, 25 U.S. (12 Wheat.) 19,

34-35 (1827).

Congress endorsed that practice throughout the

19th century and the early part of the 20th century

when revising the Articles of War. 1 & 2 W.

Winthrop, supra, at 77, 159; American Articles of War

of 1806, ch. 20, § 1, art. 64, 2 Stat. 367, reprinted in 1 &

2 W. Winthrop, supra, App. 981-982; American Art-

icles of War of 1874, art. 75, reprinted in 1 & 2 W.

Winthrop, supra, App. 992; American Articles of War

of 1916, ch. 418, art. 5, 39 Stat. 651. In the aftermath of

World War II, Congress replaced the Articles of War

with the Uniform Code of Military Justice. In so

doing, Congress retained the requirement of a quo-

rum of five members for general courts-martial, as

well as the convening authority’s discretion to detail

a greater number of panel members, the system that

exists today. Art. 16, UCMJ, 10 U.S.C. 816 (1982 &

Supp. V 1987).

History also shows that unanimous verdicts have

never been a necessary element of court-martial pro-

ceedings. The American Articles of War of 1776, like

their predecessor, the British Articles of War, re-

quired only a simple majority vote to convict a

defendant and a two-thirds majority to sentence him

to death. American Articles of War of 1776, § 14, art.

5, reprinted in 5 J. Continental Cong. 801 (W. Ford

ed. 1906); 1 & 2 W. Winthrop, supra, at 377, App. 968;

A. Macomb, A Treatise on Martial Law and Courts-

Martial 144 (1809). Congress thereafter repeatedly

endorsed similar majority vote requirements in stat-

11

utes passed in 1800, 1806, 1862, and 1874.4 Throughout

the nineteenth century, a majority vote of the panel

members was sufficient to convict a defendant of a

noncapital crime, with a two-thirds vote sufficient to

impose capital punishment. 1 & 2 W. Winthrop, supra,

at 577; Stout v. Hancock, 146 F.2d 741, 742-743 (4th

Cir. 1944), cert. denied, 325 U.S. 850 (1945).

Karly in the 20th century, Congress modified the

voting requirements for Army courts-martial, re-

quiring a unanimous vote to impose the death penalty

or to convict a defendant of a crime carrying a

mandatory death penalty. Act of June 4, 1920, ch. 227,

art. 43, 41 Stat. 795-796; Stout v. Hancock, 146 F.2d at

741-743. For all other crimes, conviction required

only a two-thirds majority. At the same time, the

voting requirements for courts-martial in the Navy

were left untouched. Thus, only a simple majority

Was necessary to convict a sailor, and a two-thirds

majority to impose the death penalty. See H.R. Rep.

No. 491, 81st Cong., Ist Sess. 26, 74 (1949). When

considering the UCMJ following World War I],

Congress adopted Article 52(a) of the UCMJ, 10

U.S.C. 852(a), in substantially its present form, so

that an accused may be convicted on a two-thirds vote

of the court-martial panel, except in the case of an

* Act of Apr. 23, 1800, ch. 33, § 1, art. 41, 2 Stat. 51 (An Act

for the better government of the Navy of the United States);

American Articles of War of 1806, ch. 20, § 1, art. 87, 2 Stat.

369, reprinted in 1 & 2 W. Winthrop, supra, App. 984; Act of

July 17, 1862, ch. 204, art. 19, 12 Stat. 605 (An Act for the

better Government of the Navy of the United States);

American Articles of War of 1874, art. 96, reprinted in 1 & 2 W.

Winthrop, supra, App. 994.

12

offense carrying a mandatory penalty of death, in

which event the panel must be unanimous.

In 1986, the President modified the Manual for

Courts-Mariial to limit the imposition of the death

penalty to those cases in which the court-martial

panel members unanimously find the defendant guilty

of an offense for which Congress has authorized the

death penalty, and then only if the court finds at least

one enumerated aggravating factor. Rule 1004, Man-

wal; Exec. Order No. 12,550, 3 C.F.R. 192 (1986 comp.).

Neither Congress nor the President sought to extend

the unanimity requirement to other situations,

however. In sun, it is clear that the five-member,

two-thirds majority vote procedures in Articles

16(1)(A) and 52(a)(2) of the UCMJ, 10 U.S.C. 816(1)(A)

and &852(a)(2) (1982 & Supp. V 1987), represent the

longstanding and considered judgment of Congress

and the Executive on the proper balance to be struck

between the rights of an individual serviceman and

the special needs of the armed forces.

That judgment is a reasonable one. The essential

function of the military is “to fight or be ready to

fight wars should the occasion arise.” United States

ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955). When

servicemembers are diverted from that function by

the need to serve as court-martial panel members,

“the basic fighting purpose of armies is not served.”

Ibid. Congress therefore has determined that the

diversion of resources necessary to conduct the

retrials that would result from a unanimous verdict

requirement is too high a price to pay in terms of lost

military preparedness. Accordingly, Congress pro-

vided for only one trial, at which a two-thirds major-

ity vote would suffice to convict.

That “one-trial” system does not exclusively favor

the prosecution. The rule that no retrials are per-

mitted in the military if there is a “hung jury”

provides a defendant with “a significant recompense”

for the disadvantages of not requiring a unanimous

verdict. Mendrano v. Smith, 797 F.2d at 1546. More-

over, as a safeguard against an inaccurate verdict by a

court-martial panel, the military courts have re-

quired the prosecution independently to prove the

defendant’s guilt before a court of military review.

The standard of review applied by a court of military

review to determine whether the evidence is suffi-

cient to support the defendant’s conviction substan-

tially differs from, and is more generous to military

defendants than, the standard employed by civilian

appellate courts. A civilian appellate court does not

inquire whether it believes that the evidence is

sufficient to prove the defendant’s guilt beyond a

reasonable doubt, but instead only determines

“whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319 (1979) (emphasis in original). By con-

trast, a court of military review must independently

review the record and be convinced of the correctness

of the court-martial panel's findings. including its

ultimate finding that the accused is guilty, before the

findings may be upheld. Art. 66(¢), UCMJ, 10 U.S.C.

S66(c).”

A court of military review may affirm “only such findings

of guilty * * * as it finds correct in law and fact and deter-

mines, on the basis of the entire record, should be approved.”

Art. 66(c), UCM, 10 U.S.C. 866(¢). Although nothing in the

14

Finally, petitioner argues that the nonunanimous

verdict of a five-member court-martial violates due

process because such a verdict is inherently unreli-

able. The court reached that conclusion for civilian

cases based on the studies cited in the lead opinion in

Ballew v. Georgia, 435 U.S. at 251-248 (opinion of

Blackmun, J.), regarding the group dynamics of

civilian juries. Much of the same reasoning formed

the basis for the decision in Burch v. Louisiana, 441

U.S. at 188. There are no comparable studies,

however, that have addressed the dynamics of courts-

martial panels. In light of the functional and

compositional differences between civilian juries and

court-martial panels, the studies on which Burch and

Ballew relied are not obviously applicable to the

military setting. United States v. Guilford, &8 M.J.

598, 601-602 (A.C.M.R. 1979), petition for review

denied, 8 M.J. 242 (C.M.A. 1980).°) Given the special

text of the statute or its legislative history suggests that the

courts of military review must independently apply the

“beyond a reasonable doubt” standard to the record when re-

viewing the sufficiency of the evidence, see Jackson v. Taylor,

353 US. 569, 577 & n& (1957), the military courts have read

that standard into the Act. F.g., United States v. Palenius, 2

M.J. 86, 91 n.7 (C.M.A. 1977).

* In Burch, the Court concluded that juries must have at

least six members, in part “to provide a fair possibility that a

cross section of the community would be represented.” 441

ULS. at 135, citing Williams v. Florida, 399 ULS. 78, 100 (1970).

That goal is inapplicable to courts-martial. The members of a

civilian jury are selected at random to represent a cross-section

of the community. By contrast, the members of the court-mar-

tial panel are deliberately chosen on the basis of their qualifica-

tions to sit as panel members. Art. 25, U.C.M.J., 10 U.S.C. 825

(1982 & Supp. V 1987).

15

deference due to Congress’s judgments in this area,

the question whether studies of the type relied upon

in Ballew justify a change in the UCMJ should be ieft

to Congress. See Hirschhorn, The Separate

Community: Military Uniqueness and Service-

men’s Constitutional Rights, 62 N.C. L. Rev. 177

(1984).

c. There is also no merit to petitioner’s claim

regarding the method of selecting the court-martial

members. A serviceman has no right to a court-mar-

tial panel randomly selected from a pool containing all

servicemen, including enlisted personnel of the same

rank as the defendant. De War v. Hunter, 170 F.2d

993, 997 (Oth Cir. 1948), cert. denied, 337 U.S. 908

(1949) (court-martial panel composed exclusively of

officers to try an enlisted man does not violate Sixth

Amendment); United States v. McClain, 22 M.J. at 128

(Sixth Amendment cross-section requirement inap-

plicable to court-martial proceedings); see Mendrano

v. Smith, 797 F.2d 1544-1547; United States v. Carter,

25 M.J. 471 (C.M.A. 1988); United States v. Santiago-

Davila, 26 M.J. 380 (C.M.A. 1988).

As to petitioner’s argument that minorities were

unfairly underrepresented on petitioner’s court-

martial panel, there is no indication that there was

any ethnic or racial bias in the process used to seleét

the panelmembers for petitioner’s court-martial.

Indeed, two of the nine prospective panelmembers in

this case were minorities. See Tr. 125-126. But

petitioner challenged both of them—one for cause and

the other peremptorily. Tr. 207, 211. Petitioner was

therefore solely responsible for keeping the two

minority members of the pool from being on his panel.

See Tr. 125-126.

16

In short, petitioner presented no evidence of racial

discrimination in the selection of court members, no

evidence of the racial makeup of the base community,

and no evidence of racial bias in the use of peremptory

challenges. See Tr. 120-123, 211; App. Exh. X. Under

those circumstances, petitioner has failed to show

that there was any constitutional infirmity in the

method by which his court-martial panel was selected.

2. Petitioner argues (Pet. 18-20) that the informa-

tion on which the search authorization was granted

did not amount to probable cause. His argument

ignores the information known to the investigating

agents and the reasonable inferences from that

information.

The identification of petitioner as the late evening

‘aller who told Nantkes (apparently falsely) that her

blinds were open focused attention on him as a

suspect. That focus was substantially enhanced by

the match between the race and size of the late

evening caller and the apparent race and size of the

rapist, as reported by Nantkes. The force of that

report was further enhanced by the fact that Nantkes

reported that both the late evening caller and the

rapist were approximately 5’4” in height—quite small

for a man. Finally, the rapist took several items,

including a nightgown, from Nantkes’s room, and it

_was reasonable for the officers and the commander

who authorized the search to conclude that there was

probable cause that petitioner committed the rapes

and that evidence would be found in petitioner’s room.

Because the showing of probable cause turned in part

on the similarity between the identification of the late

night caller and the rapist, it was not, as petitioner

ee

17

claims, dependent entirely on innocent conduct that

did not tend to identify petitioner as the rapist.

Kiven if the evidence known to the officers and

conveyed to the commander at the time of the search

authorization did not constitute probable cause, the

question of probable cause was, at worst, a debatable

one. It was therefore reasonable for the investigating

officers to rely on the search authorization that they

secured. For that reason, even if the search was not

supported sy probable cause, the nightgown and the

note containing Nantkes’s name would be admissible

under Mil. R. Evid. 311(b)(3), the military equivalent

of the good faith exception to the exclusionary rule.

3. Petitioner next asserts (Pet. 20-22) that the

court of military appeals misunderstood the serologi-

‘al evidence and therefore failed to appreciate how

strong that evidence was in supporting petitioner’s

claim of innocence. In fact, however, petitioner has

not shown that the serological evidence significantly

supported his claim of innocence, and he has failed

completely to explain the highly incriminating

physical evidence found in his room the day after the

rapes.

Petitioner’s argument regarding the serological

evidence fails to acknowledge the serologist’s testi-

mony that petitioner’s blood type did not match the

type of his other body fluids. For that reason, the

serologist compared the semen samples with petition-

er’s saliva specimen, not his blood specimen. For one

of the two tests that the serologist conducted, peti-

tioner’s saliva type matched the semen specimen. For

the other test, the two did not match, but the

serologist explained that the failure of that test to

produce a match could have been attributable to

18

deterioration of the pertinent enzyme in the sample

or contamination of the sample by other fluids on the

surfaces from which the samples were taken. Accord-

ingly, the serologist’s testimony did not exculpate

petitioner at all. To the contrary, that evidence did

nothing to rebut the powerful force of the other

evidence in the case, including the physical evidence

found in petitioner’s room.

4. Finally, petitioner presents (Pet. 22-50) the two

issues that are pending before this Court in Wezss vy.

United States, No. 92-1482 (argued Nov. 3, 1995).

Those claims are: (1) that the military trial and

appellate judges in his case were not qualified to hold

those positions because they were appointed to them

by the Judge Advocate Generai in violation of the

Appointments Clause of the Constitution, Art. I], § 2,

C]. 2; and (2) that his trial and his appeal to the court

of military review were fundamentally unfair because

the military judges sitting on those courts do not

enjoy fixed terms of office and can be reassigned to

other military duties by the Judge Advocate Generai

based on his evaluation of their performance as

judges.

Because those questions are pending before the

Court in Weiss v. United States, supra, the petition

should be held until the Court has decided Weiss and

should then be disposed of as appropriate in light of

the Court’s decision in that case.

CONCLUSION

With respect to questions 4 and 5, the petition for a

writ of certiorari should be held pending this Court’s

decision in Weiss v. United States, No. 92-1482, and

then disposed of as appropriate in light of the Court's

~e

decision in that case. In all other respects, the

pet ition should be denied.

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JULES D. SILVERBI

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